Hallandale Rehabilitation Center

National Labor Relations Board - Board Decisions

Feb 28, 1994

313 N.L.R.B. 835 (N.L.R.B. 1994)

835
313 NLRB No. 142
HALLANDALE REHABILITATION CENTER
1 In the absence of exceptions, we adopt, pro forma, the hearing
officer’s recommendations to overrule the Petitioner’s Objections
5,6,9, and those portions of 1, 2, 3, 4, 7, and 8 that he did not rec-
ommend be sustained.
2 134 NLRB 1101, 1103–1104 (1961).
3 305 NLRB 872, 876–877 (1991).
4 Although there is evidence in the record concerning warnings
issued by Washington and Robinson, the hearing officer did not rely
on that evidence to find them supervisors. We find in any event that
these warnings have not been linked to effective recommendation of
disciplinary action and thus the warnings are not indicative of super-
visory status.
Hallandale Rehabilitation and Convalescent Center
and 1115 Nursing Home and Hospital and
Service Employees Union—Florida H.E.R.E.,
AFL–CIO, affiliated with 1115 District Coun-
cil, H.E.R.E., AFL–CIO, Petitioner. Case 12–
RC–7548
February 28, 1994
DECISION AND DIRECTION OF SECOND
ELECTION
BY CHAIRMAND STEPHENS AND MEMBERS
DEVANEY AND TRUESDALE
The National Labor Relations Board has considered
determinative challenges and objections to an election
held October 22, 1992, and the hearing officer’s report
recommending disposition of them. The election was
conducted pursuant to a Stipulated Election Agree-
ment. The tally of ballots shows 36 for and 30 against
the Petitioner, with 9 challenged ballots, a sufficient
number to affect the results.
The Board has reviewed the record in light of both
parties’ exceptions and briefs,1 and has adopted the
hearing officer’s findings and recommendations only to
the extent consistent with this Decision and Direction
of Second Election.
I. CHALLENGED BALLOTS
With respect to the challenged ballots, we adopt in
the absence of exceptions the hearing officer’s rec-
ommendations to sustain the challenges to the ballots
of Monique Gustave and Marie Joseph and to overrule
the challenges to the ballots of Denish Maharaj, Jen-
nifer Mitchell, Darryl Scott, and Yondell White. Con-
trary to the hearing officer’s recommendation, we find
insufficient grounds to sustain the Petitioner’s chal-
lenges to the ballots of Alberta Butler, Mary Robinson,
and Elaine Washington. The Petitioner alleged that all
three held supervisory positions.
Butler
The hearing officer found that diet technician Al-
berta Butler had no authority over other employees and
thus was not a supervisor, as defined in the National
Labor Relations Act. He nevertheless concluded that
she should be excluded from the bargaining unit be-
cause she was a technical employee who lacked a
community of interest with the other bargaining unit
employees. Although we agree that she is a technical
employee, contrary to the hearing officer, we find that
her status as such is an insufficient basis for excluding
her from the unit.
Butler reports to the same supervisor as other unit
employees, has the same general working conditions
and benefits, works in the same locale, has frequent,
if not constant, contact with other unit employees, and
occasionally does the same work as other employees
when she prepares food trays for the patients. It is true
that Butler, as a technical employee, has had to meet
higher educational requirements than other unit em-
ployees. It is also true that she receives higher wages
than most unit employees, due in part to length of
service. Those considerations, however, do not neces-
sitate her exclusion from the unit under the factors set
forth in Sheffield Corp.,2 and reiterated in Park Manor
Care Center.3 In Sheffield, the Board stated that it
would:
make a pragmatic judgment in each case (involv-
ing placement of technicals), based upon an anal-
ysis of the following factors, among others: de-
sires of the parties, history of bargaining, similar-
ity of skills and job functions, common super-
vision, contact and/or interchange with other em-
ployees, similarity of working conditions, type of
industry, organization of plant, whether the tech-
nical employees work in separately situated and
separately controlled areas, and whether any union
seeks to represent technical employees separately.
Id. at 1103–1104. In finding that the facts of this case
do not warrant the exclusion of Butler from the unit
consisting of nursing assistants, dietary employees, and
activities’ employees at the Employer’s health care fa-
cility, we rely particularly on the fact that technical
employees were not excluded from the unit and that
the stipulated unit includes all dietary employees who
were not supervisors.
Robinson and Washington
The hearing officer, in recommending that the chal-
lenges to the ballots cast by Mary Robinson and Elaine
Washington be sustained, agreed with the Petitioner’s
contention that they are supervisors. In his analysis, he
relied primarily on references to them as supervisors in
their job descriptions, in Food Service Director
Perlinda Holliday’s evaluations of them, and in
warnings they received, all of which issued before
questions about their eligibility arose.4 He relied par-
ticularly on Holliday’s written comments on evalua-
836 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 Both parties have excepted to some of the hearing officer’s credi-
bility findings. The Board’s established policy is not to overrule a
hearing officer’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Stretch-Tex Co., 118 NLRB 1359, 1361 (1957). We find no basis
for reversing the findings.
6 Although we agree with the hearing officer that Petitioner per-
missibly provided free, low cost meals to attendees at its organiza-
tional meetings, we disavow his remarks suggesting that the Em-
ployer re-examine its pay structure.
We also agree with the hearing officer that a statement by a union
supporter that individuals who joined the Petitioner would receive
free legal services, was unobjectionable, but for reasons different
tions and warnings, to wit: Robinson’s evaluation of
March 31, 1991:
Mary needs to improve her supervisory respon-
sibilities by taking better control over employees
that she supervise. [sic] Also upon identifying
work related problems, she needs to react accord-
ingly.
Robinson’s evaluation of March 19, 1992:
Mary continues to perform in a superior man-
ner. There is a definite improvement in her initia-
tive, which was identified @ last review. . . . She
. . . works well without my immediate super-
vision. She is always willing to assist where need-
ed.
Washington’s evaluation of July 30, 1991:
Elaine . . . is . . . very good with the residents
and runs the dining room well. Elaine needs to
improve supervision skills by following through
on assigned responsibilities while maintaining
quality standards, monitoring daily/wkly cleaning
scheduling, more time should be spent in enforc-
ing dietary policies and health guidelines. Initiate
[sic] should be displayed throughout overall kitch-
en, noticing areas of improvement or needing at-
tention. The importance of increased responsibility
is expected.
Washington’s evaluation of August 14, 1992:
Elaine . . . can function . . . [with] minimum
supervision. I have identified that initiative on her
behalf as being a weakness in her supervisory
skills. Supervisors are expected to ensure that Di-
etary personnel [sic] are performing all assigned
duties, and that the kitchen is clean, while main-
taining . . . quality service to Residents.
Robinson received a warning after failing to call in
before an absence for which she had a doctor’s excuse.
The warning read in part:
I explained to her that with her position as a su-
pervisor a certain amount of responsibility is ex-
pected of her. She is aware of the importance of
call ins for scheduling purposes.
Washington received a warning for failing to main-
tain an updated snack list. It stated in part:
As a supervisor, Elaine needs to realize the im-
portance of maintaining an updated snack list as
it relates to the overall kitchen operation. Should
this happen again it may result in a 3-day suspen-
sion.
The hearing officer also noted that several of the warn-
ings given to Robinson and Washington listed each
one’s position as ‘‘supervisor’’ and that each of them
had a name tag that indicated she was a supervisor. He
found that other employees viewed Washington and
Robinson as supervisors and that each had authority to
exercise a minimum level of independent judgment as
demonstrated by Washington’s overruling Holliday on
whether a kitchen employee could leave early, by
Washington’s intervention in a problem between that
employee and another one, and by Washington’s re-
sponse to a schedule request by the same employee.
Contrary to the hearing officer, we find that the fac-
tors he relied on do not establish that Robinson and
Washington are supervisors. It is well settled that pos-
session of the title of supervisor does not in itself con-
fer supervisory status under the Act. Gem Urethane
Corp., 284 NLRB 1349 (1987), and Bowne of Hous-
ton, 280 NLRB 1222 (1986). We note that the warn-
ings and evaluations that refer to Robinson and Wash-
ington as supervisors comment on activities that are
not indicia of supervisory status, but rather involve the
performance of routine duties. Given the heavy burden
borne by the party urging exclusion, we find isolated
instances of Washington’s interaction with a single
employee insufficient to establish that she exercises
independent judgment on behalf of the employer. See
Ohio Masonic Home, 295 NLRB 390, 394 (1989);
NLRB v. Berger Transfer & Storage Co., 678 F.2d 679
(7th Cir. 1982).
Conclusion
Although the challenged ballots which have been
cast by persons found eligible to vote are sufficient to
be determinative of the numerical outcome in this pro-
ceeding, we refrain from directing that they be opened
and counted in view of our finding that some of both
parties’ election objections have merit and warrant set-
ting aside the election, whatever the outcome.
II. ELECTION OBJECTIONS
Both parties have filed exceptions to the hearing of-
ficer’s recommendation to set aside the election be-
cause of improper conduct by each of them.5 With re-
spect to the Petitioner’s conduct, we find it unneces-
sary to pass on his finding that three or four anony-
mous phone threats made to the Employer’s election
observer warranted that result.6 Rather, in affirming
837HALLANDALE REHABILITATION CENTER
from those stated by the hearing officer, who treated it as permis-
sible campaign propaganda under Midland National Life Insurance,
263 NLRB 127 (1982). We rely instead on the absence of evidence
that the speaker was an agent of the Petitioner. Consequently, the
statement could not reasonably be accorded much weight by anyone
who heard it and thus would not serve as a basis for setting aside
the election. But, even if the statement had been made by a rep-
resentative of the Petitioner, it merely promised benefits and was
therefore permissible absent evidence that those benefits were not al-
ready available to union members or were conditioned on the prom-
isee’s demonstration of preelection support for the Union. See Mail-
ing Services, 293 NLRB 565 (1989), and Dart Container, 277
NLRB 1369, 1370 (1985). Finally, as there is no allegation that the
statement was a misrepresentation, issues addressed by Midland are
not presented.
7 See International Stamping Co., 97 NLRB 921, 923 (1951). Nev-
ertheless, we find that the hearing officer’s reliance on Milchem,
Inc., 170 NLRB 362 (1968), is misplaced absent evidence that pro-
longed conversations took place between the observers and voters.
The Petitioner, however, mischaracterizes Daphinis’ comments as
being trifling, innocuous, and isolated.
8 For the reasons stated in his report, we agree that the Employer
threatened employees with discharge.
Because the Employer engaged in other conduct that is objection-
able here, we find it unnecessary to pass on the hearing officer’s
finding that the Employer also interfered with the election by prom-
ising future benefits. Additionally, we disavow the hearing officer’s
comments in fn. 36, which are unnecessary to the hearing officer’s
decision.
9 Professional Air Traffic Controllers.
the hearing officer’s finding of merit in certain of the
Employer’s objections, we rely solely on the conduct
of Vierge Daphinis, who while serving as the Petition-
er’s election observer, kept a list of those who voted,
commented audibly on how each voter would vote,
and directed derogatory remarks at those she deemed
to be against the Petitioner. Those actions destroyed
the integrity of the election process by undermining
measures to insure the secrecy of the ballot and creat-
ing a coercive atmosphere in the polling area.7
Finally, in affirming the hearing officer’s finding
that the Employer engaged in objectionable conduct,8
we agree that the Employer’s showing of a videotape
about the PATCO9 strike against the Federal Aviation
Administration conveyed a clear message that strikers
would be fired. Davis testified that the videotape that
he introduced had shown not only the strike, but its
consequences. No testimony was offered that any ex-
planation was given to distinguish the demonstrated
consequences of a strike by Federal employees, who
were discharged for their participation in the strike,
from what would occur should the Employer’s em-
ployees engage in strike activity. (In contrast, the evi-
dence indicated that, in showing another videotape
concerning ties between a union and organized crime,
the Employer had explained to the employees that the
depiction did not apply to the Petitioner.) We find that
the Employer’s showing of the PATCO videotape
could reasonably have led employees to believe that
they could be discharged for strike activity.
[Direction of Second Election omitted from publica-
tion.]